Industrial Park School Sues Lakewood over Zoning Change Notification

October 15th, 2016

[Editor's Note: At 8:26 p.m. on October 16 and at 7:55 p.m. on October 17, at 4:00 p.m. on October 18 and at 12:42 p.m. on October 20, 2016, this story was edited for style, content and accuracy.]

The state's second-largest industrial park may not become the state's largest educational campus, thanks in large part to conflicting public policy.

Lakewood's past public policy permitted schools to open anywhere in town, including its' industrial parks, but more recent public policy prohibits them from opening in some areas of the industrial parks now zoned as an Airport Business Commercial Zone District (ABCD).

One school has mounted a legal challenge to the new restriction.

In legal papers filed in Toms River on August 15, 2016, which NJ News & Views requested through the Open Public Records Act (OPRA), Bais Reuven Kamenitz, with offices located at 299 Monmouth Avenue in Lakewood, charged township officials with failing to notify the school that property it owns on Block 1160.01, Lots 386 and 387, a vacant parcel located on Cedarbridge Avenue (bais_reuven_kamenitz_industrial_park_site_10.16.16.pdf), was rezoned as an airport "safe zone" that excludes schools (ord._2013-60_abcd_zone.pdf).

According to online information, Bais Reuven Kamenitz, also known as Bais Reuven Kamenetz, is an elementary and secondary school.

The owners of Bais Reuven Kamenitz are expanding their non-profit business to an area in the industrial park that includes a former warehouse, in addition to the vacant site located on Block 1160.01, Lots 386 and 387, a location that is now an ABCD zone designed to support for-profit business around Lakewood Airport.

"The Property is traditionally located in the Industrial Park Professional Service ("PS") zone, wherein quasi-public and private educational facilities are permitted uses in the zone," legal papers stated.

The lawsuit reported that on September 12, 2013, members of the Lakewood Township Committee adopted Ordinance #2013-60, which modified Article IX, Chapter XVIII, 18-901 of the municipality's land use ordinance.

Article IX, Chapter XVIII, 18-901 establishes zoning districts and maps.

Through adoption of Ordinance #2013-60, the township committee created an Airport Business Commercial Zone district (ABCD) and amended the Lakewood Township Zoning Map.

In the shadow of pending litigation, committee members killed a similar ordinance on second reading at their July 21, 2016 meeting that would have designated a second ABCD as a "safe zone" for commercial business.

Both the 2013 and 2016 ordinances described Lakewood as the "home of a unique resource, the Lakewood Airport," which the Township committee believed would act as a catalyst for "positive commercial growth."

In order to realize that growth, the ordinance proposed that committeemen designate a portion of the industrial park where the airport is located as the Airport Business Commercial District (ABCD) "so that like-minded ventures will locate in the vicinity of the Airport and take advantage of the newly re-designed Parkway access."

The ordinance would have benefited the township's growing work force of homesteaders, as well as taxpayers.

"Whereas, due to the explosive growth in the Township there are fewer opportunities than ever for development of properties in the comprehensive manner that would best serve the Township's future needs," the ordinance stated.

The airport's 2005 Master Plan provided a blueprint for development of tax ratables to support the public business.

Despite the best efforts of public officials, those efforts are not succeeding.

As the presence of schools in Lakewood's industrial parks kills off commercial business there, commercial businesses are increasingly selling their properties to schools.

In 2011 Lakewood Industrial Commission (LIC) director Yisroel (Steven) Reinman received correspondence from Victor Iorio, owner of a business located in the Lakewood industrial park. In his correspondence, which many other business owners in the park also signed, Iorio told Reinman that public policy permitting schools to open in the industrial park increased the cost of doing business there. Iorio said that while he supported the education of school children, their presence in the park exposed companies doing business there to greater liability risk.

The business owners threatened to leave Lakewood, according to Iorio's correspondence, which NJ News & Views reported five years ago.

In response, LIC members hired a part-time assistant to research the how much tax revenue the township stood to lose if the industrial park's remaining tax ratables left.

A reporter for NJ News & Views requested to inspect the report under the Open Public Records Act (OPRA), but was denied access to it.

Based on their findings, LIC commissioners and committeemen developed the 2013 ordinance, referred to by the acronym "ABCD." Under the ordinance, schools are not a permitted use in the new zone.

Bais Reuven Kamenitz charged that the township did not follow mandatory notification provisions of the Municipal Land Use Law (MLUL) in adopting Ordinance #2013-60.

"In addition to providing newspaper publication of any amendment to a zoning ordinance, an amendment of the zoning ordinance that changes the classification of boundaries of a zoning district also requires individual notice, by personal or certified and regular mail to owners of property within the district or within 200 feet of the new district boundaries," the school stated in legal papers.

Bais Reuven Kamenitz based notification requirements on N.J.S.A. 40:55D-62.1.

The school charged that the new zone changed the boundaries and/or character of the district.

"The Township was required to provide individual notice to property owners of the proposed Ordinance #2013-60," legal papers prepared by attorney Paul H. Schneider of Giordano, Halleran & Ciesla, P.C. stated. "The Township failed to provide individual notice to the owner (of) the Property, property owners within the M-1, PS and LP zones and/or property owners within 200 feet of the new district boundaries."

The legal papers stated that the only exception to the individual notice requirement is if a change to the boundaries and/or character of the district is "recommended in a periodic general reexamination of the Master Plan," as required under N.J.S.A. 40:55D-62.1.

Schneider noted that the Lakewood Master Plan and the March 13, 2007 Master Plan Reexamination Report did not recommend rezoning portions of the PS or LP zones, nor did those documents recommend the creation of an Airport Business Commercial Zone.

"While the Reexamination Report recommends rezoning a portion of the M-1 zone, that recommendation is to rezone the affected portion from M-1 to a residential zone," the legal papers reported.

In 2005, Lakewood Committeeman Marc (Meir) Lichtenstein volunteered to serve as the only member of a subcommittee charged with investigating whether the publicly-owned Lakewood Airport should be redeveloped as something else.

According to media reports at the time, that "something else" was residential housing.

Lichtenstein's reported findings recommended against such a change since the township would have had to reimburse the $10 million Federal Aviation Administration (FAA) grant used to buy Lakewood Airport in the mid-1990s.

"Thus, the rezoning and district map changes adopted in Ordinance #2013-60 is not one of the recommended changes contained in a periodic general reexamination of the Master Plan of the Township," legal papers said in summary. "Thus, individual notice was required prior to adoption of Ordinance #2013-60. The Committee did not have jurisdiction to consider or adopt Ordinance #2013-60."

Legal papers indicated that the school was blindsided before its' scheduled July 5, 2016 application hearing before the Lakewood Planning Board.

"The Planning Board deemed the application complete, requested the escrow monies and scheduled the application for a public hearing," legal papers continued. "Upon information and belief, it was not until a member of the public received the notice for the public hearing and raised the issue, that the Planning Board advised the applicant, Bais Reuven Kamenitz, of the zone change."

A reporter for NJ News & Views attempted to view the July 5, 2016 planning board meeting minutes on the township Web site. After clicking on the link, the meeting agenda for that date displayed, instead of the meeting minutes.

Following posting of this report, Lakewood Planning Board Secretary Ally Morris e-mailed NJ News & Views a copy of the minutes. Morris denied that the link had displayed the agenda, instead of the minutes of July 5, 2016 planning board meeting.

The minutes that Morris e-mailed to NJ News & Views on Monday, October 17, did not include the application by Bais Reuven Kamenitz, which was scheduled for action on the posted meeting agenda and referenced in the school's lawsuit.

She told NJ News & Views that former township attorney Jan Wouters, a neighbor of the applicant, contacted her office before the July 5, 2016 hearing of the application. Wouters reportedly informed Morris that the site was now zoned to exclude schools, which she in turn reported to the applicant.

Wouters' firm, Bathgate, Wegener & Wolf, was the appointed township attorney from January 1, 2009-December 31, 2013.

The law offices of Bathgate, Wegener & Wolf are located at 1 Airport Road, directly across Cedarbridge Avenue from the school's development site, which is adjacent to the state's Garden State Parkway exit ramp.

Morris said she would have township employee Marta Harrison investigate the problem the reporter described in trying to view the July 5, 2016 meeting minutes.

Harrison is a former committeewoman and mayor of Lakewood. She declined to run for re-election in 2003, after accepting a state job.

Taxpayers invested in the township deserve those answers.

Schools invested in Lakewood development properties that may not be suitable for their purpose deserve answers, too.

Legal papers for Bais Reuven Kamenitz stated that tax records and the zoning map reflected that the school site was located in the PS zone, and that the property owner never received individual notice of the ordinance or the change in zone as the basis for filing suit.

"Ordinance #2013-60 is arbitrary, capricious, ultra vires, void, unlawful and unenforceable," legal papers concluded.

That remains to be seen.

The airport "safe zone" ordinance adopted in 2013 is not the only zone that excludes schools. However, for years, the township has selectively chosen to enforce zone requirements excluding schools for some development applicants, but not for others.

August 1, 2005 meeting minutes of the Lakewood Zoning Board of Adjustment report an application by Shlomo Kanarek of Bais Rifka Rachel, a school located at 1690 Oak Street and Paco Way, on Block 1160.05, Lot 47 in the M-1 industrial zone and AHZ Airport Hazard Zone.

According to zoning board testimony by township Engineer/Planner James Priolo, Section 903 K. of the Airport Safety and Hazardous Zoning Act of 1983 governs in the Airport Hazard Zone (nj_airport_safety_and_hazardous_zoning_act_of_1983.pdf).

The Act specifically prohibits schools. However, schools are allowed to open in the AHZ with the written approval of the commissioner of the N.J. Department of Transportation (NJDOT).

"The educational use is permitted in the M-1 Zone, but is not permitted within the AHZ Zone," Priolo reportedly told the applicant. "Therefore, a use variance will be required for the proposed non-conforming use."

Subsection 11 of the Act addresses violations of it.

Under section 16:62-11.1, Liability, the Act reports that any violation of any provision under it may be grounds for fine, modification, suspension or revocation of any license issued under Title 6 of the New Jersey Statutes Annotated. In addition, the DOT commissioner may institute, in any court of competent jurisdiction, an action in the name of the State of New Jersey to prevent, restrain, correct or abate any violation of any provision of the chapter, and by way of injunction or otherwise, relief from the court.

Meeting minutes report that zoners approved the minor site plan. (lak_zba_meeting_minutes_ahz_app_8.1.05.pdf)

While members of the Lakewood zoning board complied with state law, members of the Lakewood Township Committee defied it.

Exactly one year later, in an August 21, 2006 post, NJ News & Views investigated a muster zone the township was building in the AHZ. A reporter interviewed Holly Baker, a spokesperson for the Federal Aviation Administration (FAA), who responded for comment.

Baker e-mailed the reporter a December 2, 2005 letter sent by Otto N. Suriani, Acting Manager of the New York Airports District Office, in response to correspondence by Lakewood Airport Director Bertram Albert.

"We have received your letter dated November 3, 2005 with questions regarding the Safety Zone and the airport's control over it," Suriani wrote Albert. "In this case I believe you are referring to the Runway Protection Zone (RPZ), which in fact extends across Cedar Bridge Avenue."

Suriani told Albert that the FAA provides guidelines regarding the protection of land uses in areas adjacent or under the airport's RPZ.

"The purpose of the RPZ is to enhance the protection of people and property on the ground," Suriani wrote Albert in 2005. "Land uses prohibited from the RPZ are residences and places of public assembly like churches, schools, hospitals, office buildings, shopping centers, and other uses with similar concentrations of persons."

In September 1, 2016 executive meeting minutes of the Lakewood Township Committee, committeemen reportedly discussed the lawsuit, as well as its' basis: the "safe zone" ordinance, which also excludes schools located near Lakewood Airport.

Township officials initially denied access to a copy of the lawsuit and "safe zone" ordinance reportedly discussed in the committee's executive session. Officials only released the requested documents after a reporter for NJ News & Views found references to the "safe zone" ordinance on items scheduled for discussion on 2015 and 2016 LIC meeting agendas.

For years, members of the Lakewood Industrial Commission (LIC) reportedly discussed possible ordinances that would promote business at and around Lakewood Airport.

A decade ago, so did members of the Lakewood Development Corporation (LDC), which oversees the township's Urban Enterprise Zone (UEZ) program.

One of those LDC members was Bertram Albert.

As director of Lakewood Airport, Albert expressed his concern that a proposed site in the industrial park that LDC Director Russell Corby asked members to approve for development as an income-generating parking lot for school buses was located in the airport's "safety zone."

Albert's worst fears for the safety of Lakewood's youngest, and most vulnerable citizens - its' children - have come true.

Although schools such as Bais Reuven Kamenitz and Bais Rifka Rachel are a conforming use in the industrial park, they are not a conforming use in the AHZ or the ABCD zone.

Despite those restrictions, the Lakewood Planning Board reportedly heard and approved a school application to open in the AHZ at its' July 26, 2011 meeting. (lakewood_planning_board_meeting_minutes_7.26.11.pdf)

On that date, planning board members heard an application submitted by Yeshiva Toras Menachem for a site located in the industrial park on Swarthmore Avenue, west of Rutgers University Boulevard.

Testimony identified the site as being located in the AHZ.

Meeting minutes reported that the LIC reviewed the application on June 22, 2011, and that its' only recommendation pertained to a proposed access and bus staging area.

Neither the zoning board nor the DOT commissioner heard and reviewed the application, as required by state law.

For years, the Lakewood Planning Board may have illegally heard and approved applications for schools in the industrial park's AHZ that instead required zoning board approval as a non-conforming use, as well as the written permission of the state DOT commissioner.

For years, the Lakewood Planning Board may have illegally heard and approved applications for schools seeking to open in the ABCD zone, long before former township attorney Jan Wouters notified the planning board secretary in 2014 that township ordinance excluded them.

With the ongoing 2016 Reexamination of the township's Master Plan, Lakewood has an opportunity to preserve its' industrial parks for commercial business, and to discourage continued redevelopment of those parks as a tax-exempt educational campus.

According to a video posted online by a journalist using the pseudonym "First Amendment Activist"(, a Master Plan Advisory Subcommittee recently discussed their goal of identifying new areas to designate for high-density population development in Lakewood.

That is not a good idea.

Promoting population growth in turn creates market demand for more schools to educate children of large families buying or renting new homes being developed in the township.

Most of those children will be traveling to class at public and non-public schools in increasing numbers of buses that crisscross Lakewood's network of undersized local, county and state roads.

So will increasing numbers of vehicles owned or leased by their parents and guardians.

An airport "safe zone" that promotes commercial business is a good idea, but township officials do not need to promulgate new legislation; they and their appointees need only comply with existing law.

Bais Reuven Kamenitz and the Lakewood Township Committee will have their day in court to litigate the legality of the ordinance, but committeemen also need to reexamine the municipality's Unified Development Ordinance (UDO), which permits schools to open anywhere in town.

For more than a decade, Lakewood has encouraged development of schools in an area referred to in township documents as the Oak Street Core and as the Oak Street Corridor by selling public land that is deed-restricted for that purpose.

The township needs to do more than just rezone districts to restrict school locations. Officials need to give school directors a reason not to open in the industrial parks. Promoting school development in the Oak Street area is a good start. However, as long as the cost of doing business in the industrial parks continues to escalate, more tax ratables will continue to leave town by selling their properties to more schools that may not be a conforming use in them.

It's a vicious cycle.

Township officials can begin to reverse that cycle and provide taxpayer relief just by listening to residents that want less intense residential development, instead of high-density development.

"Believe me, we're working on it," Committeeman Michael D'Elia said during the public forum held at the October 6 committee meeting. "It's very frustrating for us, and I imagine, for (all of) you."